With the ubiquity of smartphones and laptops, recording has become the default recourse for employees interested in obtaining proof of their workplace encounters.

And why not?

In the past few months alone, we have seen how effective that can be. Following her termination from the White House, Omarosa Manigault-Newman utilized surreptitious recordings to form a sensationalized narrative of her time there. These recordings, paired with the White House backlash, generated sufficient interest to secure her book’s No. 1 position on the New York Times Bestsellers List.

Recording can also benefit a less-high-profile employee. We have seen this with former Wilfrid Laurier University teaching assistant Lindsay Shepherd, who recorded her berating by her academic superiors and the head of the school’s Gender Equity committee. The extremity of the attacks and mishandling of the meeting would never have become public knowledge if she had not protected herself by recording her interrogation.

It is not a crime to secretly record a workplace conversation if the person recording is a participant in the conversation. But an employer can enact policies in the workplace that prohibit recording conversations and identify that a violation can lead to discipline.

Clients, both employers and employees, often ask my views respecting surreptitious recordings. An employee must be mindful of how the decision-maker may perceive the act of recording or the recording itself.

In a 2017 Manitoba case, Mark Hart sued his former employer, Parrish & Heimbecker, after he was dismissed for cause after four separate complaints. After the third complaint, Hart began recording his meetings with senior management. In addition to the four workplace complaints, the employer relied on the fact of the recordings as cause. It argued that Hart’s surreptitiously recording meetings was a deliberate violation of his duty of confidentiality and a breach of trust and loyalty to his employer. The decision to produce the recordings during trial did not go the way Hart had intended. It was held to be a breach of both the employer’s code of conduct and the confidentiality, trust and loyalty owed to an employer.

The court interpreted Mr. Hart’s decision to record the meetings as a demonstration that he understood the gravity of the issues leading up to his termination. In other words, the fact that he saw fit to record his meetings demonstrated that he knew he was at risk of dismissal.

The court did not determine whether the recording would have been sufficient, by itself, to justify termination for cause.

Beyond the likelihood of strengthening the employer’s position, those who decide to record must be cognizant of the potential for personal liability. A secret recording that captures personal information could form liability against the recorder for breach of privacy.

The benefit of a recording in most employment law litigation is limited and should be handled with care. There may be circumstances in which surreptitious recording can be justified, for example, to preserve a record of mistreatment or abuse in the workplace when there is no other cogent evidence. But there are risks in doing so and employees should proceed with caution and obtain advice in advance.

• Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.

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